OPINION: Senators Should End The Disturbing Trend Of Religious Tests For Judges

3:00 PM 01/23/2019 | Opinion

Larry Obhof | President, Ohio Senate

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Article VI, Clause 3 of the Constitution contains perhaps the most unambiguous sentence in our nation’s founding document. It states that all legislators, executive branch officials, and judicial officers shall take an oath to support the Constitution. It ends by saying, in the clearest terms possible, that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

The words of Article VI speak for themselves. “No religious test shall ever be required.” Yet with respect to recent judicial nominees, Senate Democrats appear not only to be applying religious tests, but doing so with disturbing regularity.

When Amy Coney Barrett was nominated to an appellate judgeship in 2017, her religious beliefs were front-and-center during the confirmation hearings. Senators asked if Barrett considered herself an “orthodox Catholic” and suggested that she would apply Catholic morality to decide cases. The ranking committee member famously said “the dogma lives loudly within you, and that’s of concern.”

Last year, that same senator questioned judicial nominee Michael Scudder about the scope of his involvement in his parish’s work to set up a crisis pregnancy center. Over the course of 2018, several nominees were asked about their affiliation with the Knights of Columbus, a Catholic fraternal service organization.

This line of questioning has now spilled over into the new year. Members of the Senate Judiciary Committee have sent written questions to Brian Buescher, a nominee for a district judgeship in Nebraska, about his involvement in the Knights of Columbus. One cannot help but wonder whether the current line of questioning is a test run for a strategy to oppose Judge Barrett, or another religious nominee, if that person is nominated to the Supreme Court.

Regardless of the Senate Democrats’ motives, this trend of scrutinizing nominees’ private religious beliefs should concern us all. The First Amendment protects freedom of religion and forbids Congressional interference with that right. Article VI states clearly that “no religious test” shall be applied to any office, including federal judgeships. These aren’t difficult to understand. Neither Barrett nor Buescher is “too Catholic” to be a judge, and strictly speaking, there is no such thing. So long as they are willing to uphold the Constitution, a nominee’s religious beliefs (or lack thereof) is no barrier to confirmation.

Nor should members of the U.S. Senate use the judicial hearing process to denigrate the Knights of Columbus or similar groups. The Knights of Columbus is a mainstream organization with nearly two million members. It provides charitable services, including disaster relief, and promotes Catholic education. It takes positions on some political issues, such as abortion, that are consistent with the positions of the Catholic Church. Membership in an organization like this hardly warrants mention, let alone the kind of scrutiny it is now getting from Washington insiders and would-be presidential candidates.

Why focus so much attention on the private beliefs of these nominees, or their affiliations with mainstream religious groups? More than a year ago Harvard Law School Professor Noah Feldman offered a likely explanation. “What’s going on here,” he wrote in Bloomberg, “is that … Democrats want to imply that the presence of Catholic justices is a threat to … Roe v. Wade.”

He went on to suggest that Barrett was subject to such scrutiny in order to “taint” her nomination and lessen her chances of being nominated to the Supreme Court someday. Professor Feldman, a self-described liberal, quite rightly deemed these tactics an “outrage.” As the Supreme Court emphasized decades ago, the No Religious Test Clause means exactly what it says: “Freedom of thought, which includes freedom of religious belief, is basic in a society of free men,” and to follow a different rule “is abhorrent to our tradition.”

Each member of the Senate is free to vote his or her conscience, to accept or reject a judicial nominee as that senator deems fit. It is unfortunate that senators have litmus tests, rather than focusing on broader questions of judicial philosophy and interpretive methodology. Yet if a senator does have a litmus test, like Roe, he or she should ask about that. Senators should not speak in code or use religion and words like “dogma” as proxies for what they really mean. They certainly should not turn organizations such as the Knights of Columbus into political footballs, catching them in the crossfire of Washington’s increasingly ugly politics.